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16 St. John's J. Legal Comment. 165 (2002)
Taking Fault with New York's Fault-Based Divorce: Is the Law Constitutional

handle is hein.journals/sjjlc16 and id is 173 raw text is: TAKING FAULT WITH NEW YORK'S FAULT- BASED DIVORCE: IS THE LAW CONSTITUTIONAL? RHONA BORK* INTRODUCTION New York remains one of a handful of states in the country where it is still not possible to obtain a no-fault divorce unless there is the consent of both parties.' Following California's lead in 1970,2 about half of the states have instituted pure no-fault divorce laws, which provide for divorce upon one party's claim that irreconcilable differences have caused the irremediable Class of January 2002, St. John's University School of Law. 1 See N.Y. DoM. REL. LAW §170 (6) (Consol. 2000) (giving permissible grounds for divorce); see, e.g., MISS. CODE ANN. § 93-5-2 (1999) (requiring joint petition with separation agreement); TENN. CODE ANN. § 36-4-101(12) (2000) (requiring both parties to be in agreement on terms of marital dissolution before court will grant no-fault divorce). See generally Doris Jonas Freed & Timothy B. Walker, FamilyLawin the Fifty States, 21 FAM. L.Q. 417, 440-43 (1988) (pointing out all states have some form of no-fault divorce); Gary H. Nichols, Covenant Marriage: Should Tennessee Join the Noble Experiment?, 29 U. MEM. L. REV 397, 422 (1999) (stating claim of irreconcilable differences may not be pursued unilaterally by one party without consent of other); Doris Jonas Freed & Joel R. Brandes, No More Messin' with Hessen, N.Y.L.J. Aug. 17, 1988, at 3 (stating New York is only remaining jurisdiction in which living separate and apart is not grounds for divorce). 2 See CAL. FAM. CODE §§ 2310-2311 (Deering 2000); LENORE J. WErrZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 15 (The Free Press ed., Collier Macmillan Publishers 1985) (stating that under pure no-fault divorce fashioned in California, divorce could be obtained (1) without grounds, (2) without proving prove fault or guilt or taking any moral position, (3) by unilateral decision of one spouse, (4) without linking financial awards to fault, (5) with standards that are gender neutral and (6) with procedures aimed at reducing adversarial climate and fostering amicable divorce); see also Herbert Jacob, The Silent Revolution: The Transformation of Divorce Law in the United States, reprinted in 86 MICH. L. REV. 1121, 1123 (1988) (explaining that no-fault was technical cover for California's lenient divorce policy which had fostered visible industry of producing fraudulent evidence of marital fault under old fault statute). See generally Walter Wadlington, Divorce Without Fault Without Pejury, 52 VA. L. REV. 32, 85-87 (1966) (pointing out that no-fault statutes containing living separate and apart provision assure law applies only to those marriages that have ceased to function).

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